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Category: Workplace Accidents

  • Injured Worker Wins Right to Shoulder Surgery: Court Upholds Decision Against Employer and Insurer

    In a victory for injured workers in Louisiana, the Court of Appeal for the Fourth Circuit recently upheld a decision granting Lorae Burnett the right to shoulder surgery following a work-related motor vehicle accident. The case, Burnett v. Full Force Staffing, LLC, & LUBA Casualty Insurance Company, centered on interpreting the state’s Medical Treatment Guidelines and whether the recommended surgery was medically necessary and appropriate.

    Background of the Case:

    Mr. Burnett, an employee of Full Force Staffing, was injured in a motor vehicle accident while on the job. He sought workers’ compensation benefits for various injuries, including significant pain in his right shoulder. After receiving conservative treatment that failed to alleviate his pain, Mr. Burnett’s orthopedic shoulder specialist, Dr. Savoie, recommended surgery.

    Dispute Over Surgery:

    LUBA Casualty Insurance Company, the Full Force Staffing insurer, denied the surgery request. They claimed the surgery was not pre-authorized, and there was no prior indication that Dr. Savoie was Mr. Burnett’s chosen physician.

    Mr. Burnett challenged this denial, filing a Disputed Claim for Medical Treatment with the Office of Workers’ Compensation’s (OWC) Medical Director. After reviewing Mr. Burnett’s medical records, the Medical Director determined that the surgery was in accordance with the OWC Medical Treatment Guidelines and should be covered.

    The Appeal

    Full Force Staffing and LUBA appealed the Medical Director’s decision, arguing that the surgery was unnecessary and did not comply with the Medical Treatment Guidelines. They also asserted that Mr. Burnett had not undergone sufficient conservative therapy before opting for surgery.

    Court’s Decision:

    The Court of Appeal reviewed the case and found that Mr. Burnett’s medical records clearly showed that conservative treatment had failed to relieve his pain. The court also noted that the Medical Director had likely reviewed additional medical records not presented in court, further supporting the decision to approve the surgery.

    The court ultimately affirmed the OWC’s judgment, upholding Mr. Burnett’s right to receive the recommended shoulder surgery. It concluded that the appellants failed to provide clear and convincing evidence to overturn the Medical Director’s decision, especially since they did not present any countervailing medical evidence to dispute Dr. Savoie’s recommendation.

    Key Takeaways:

    This case is an essential reminder that injured workers in Louisiana have the right to receive medically necessary treatment, even if it requires surgery. The Medical Treatment Guidelines provide a framework for determining appropriate care, and the OWC Medical Director plays a critical role in resolving disputes.

    If your workers’ compensation claim for medical treatment is denied, you can challenge that decision. It is crucial to consult with an experienced workers’ compensation attorney who can guide you through the dispute resolution process and advocate for your right to receive the necessary medical care.

    Written by Berniard Law Firm

  • No Bond, No Appeal: Louisiana Court Dismisses Workers’ Comp Appeal for Procedural Misstep

    In a decisive move highlighting the importance of procedural adherence in workers’ compensation cases, the Louisiana Court of Appeal, Fourth Circuit, dismissed an appeal because the appellants failed to post a required appeal bond.

    This decision underscores the importance of adhering to procedural requirements in workers’ compensation appeals.

    Case Background:

    Angela Jackson sustained an ankle injury while working at a Family Dollar Store in New Orleans. She filed a workers’ compensation claim, asserting that she was a direct employee of Becky Tolito and Tolito Services Co., L.L.C., and a statutory employee of Family Dollar, S&S Janitorial Services, and SMS Assist.

    The Worker’s Compensation Judge (WCJ) ruled in favor of Ms. Jackson, finding that she was injured in the course and scope of her employment. The WCJ awarded her medical expenses, temporary disability benefits, and supplemental earnings benefits and assessed penalties and attorney’s fees against the defendants.

    The defendants appealed the WCJ’s decision. However, they failed to post an appeal bond, a mandatory requirement in Louisiana workers’ compensation cases where the claimant has been awarded benefits.

    Court’s Ruling:

    The Court of Appeal dismissed the appeal as premature due to the lack of an appeal bond. It emphasized that Louisiana law mandates appeal bonds in workers’ compensation cases to guarantee payment of the awarded benefits, interest, and costs. The court noted that while the appellants failed to post the bond, the delay for doing so does not begin until the WCJ sets the bond amount.

    The case was remanded to the WCJ with an order to set the appeal bond amount, allowing the appellants to perfect their appeal by posting the bond within the prescribed time limits.

    Key Takeaways:

    This case serves as a crucial reminder for employers and their insurers to follow procedural requirements diligently when appealing workers’ compensation decisions. Failure to post an appeal bond can result in the dismissal of the appeal, potentially delaying the resolution of the case and incurring additional legal costs.

    In Louisiana, appeal bonds are mandatory in workers’ compensation cases where the claimant has been awarded benefits. The WCJ sets the bond amount, and the appellant has a specific timeframe to post the bond after being notified of the amount.

    It is imperative for parties involved in workers’ compensation litigation to consult with an experienced attorney to ensure compliance with all procedural rules and avoid potential pitfalls that could jeopardize their appeal.

    Additional Sources: Angela Jackson v. Family Dollar Stores of Louisiana Inc., et al

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Workers Compensation Issues: Work-Related Injury and Subsequent Leave: When is Compensation Due? and Understanding the Finality of Workers’ Compensation Settlements

  • Work-Related Injury and Subsequent Leave: When is Compensation Due?

    Navigating the complexities of workers’ compensation claims can be challenging, especially when subsequent health issues and leaves of absence are involved. A recent case highlights the importance of understanding the nuances of Louisiana workers’ compensation law and the critical role of proving causation in obtaining benefits.

    Jerry Neal, Jr., a radiology technician, sustained a back injury while lifting a patient at St. Tammany Parish Hospital in 2014. He returned to work on modified duty and eventually full duty. However, he re-injured his back in a similar incident in 2015. Again, he was placed on modified duty but later took a leave of absence for an unrelated neck surgery. When his leave expired, he was terminated because he was not medically cleared to return due to his neck, not his back. Subsequently, he filed for workers’ compensation benefits, claiming he was unable to work due to his back injury.

    The court’s decision hinged on whether Mr. Neal’s inability to work was directly caused by his work-related back injury or his non-work-related neck surgery. The court also examined whether he was entitled to temporary total disability (TTD) or supplemental earning benefits (SEB).

    Key Takeaways from the Ruling:

    • Clear and Convincing Evidence for TTD: To receive TTD benefits, an employee must prove by clear and convincing evidence their inability to engage in any employment due to the work-related injury. Mr. Neal’s doctor testified that he could have performed the modified-duty work offered, thus undermining his TTD claim.
    • SEB Eligibility: SEB benefits are available when an employee cannot earn 90% or more of their pre-injury wage due to a work-related injury. The court emphasized that the employee must prove the work-related injury, not another cause, led to the wage loss. Mr. Neal’s voluntary leave for neck surgery was deemed the reason for his inability to work, not his back injury.
    • Doctor’s Testimony and Modified Duty: The court considered the doctor’s testimony that Mr. Neal could have performed modified duty and that his work restrictions were related to his duties as a radiology technician. This further supported the denial of benefits.

    This case underscores the critical importance of establishing a clear causal link between a work-related injury and any subsequent inability to work. If an employee’s absence from work is due to an unrelated medical issue, even if they have a pre-existing work-related injury, they may not be eligible for workers’ compensation benefits. It also highlights the importance of understanding the specific requirements for TTD and SEB benefits and providing sufficient evidence to meet the burden of proof.

    Additional Sources: JERRY HEAL SR. VERSUS ST. TAMMANY PARISH HOSPITAL

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Workers Compensation Issues: 1010 Form Required For Company To Cover Medical Expenses in Workers Compensation and Worker Did Not Commit Fraud In Pre-Work Medical History Questionnaire

  • Worker’s Comp in Louisiana: Navigating the Medical Treatment Guidelines

    In the realm of workers’ compensation, ensuring injured employees receive necessary medical treatment can sometimes be a battle. A recent Louisiana Court of Appeal decision, Deubler v. Bogalusa City Schools, highlights the complexities surrounding the Louisiana Medical Treatment Guidelines and the process of obtaining authorization for treatment. This case serves as a reminder of the importance of adhering to these guidelines while also recognizing the need for flexibility when circumstances warrant it.

    Irvin Deubler, an employee of Bogalusa City Schools (BCS), suffered a lower back injury at work. He was receiving workers’ compensation benefits and sought treatment from Dr. Flagg for his chronic pain. Dr. Flagg recommended an MRI and a psychological evaluation to determine if Deubler was a candidate for a spinal cord stimulator (SCS) trial, a potential treatment option for his pain.

    BCS’s insurer, LUBA Casualty Insurance Company, denied these requests, prompting Dr. Flagg to appeal to the Office of Workers’ Compensation (OWC). The OWC’s associate medical director approved the requests, but LUBA and BCS further appealed to the OWC judge.

    The OWC judge upheld the associate medical director’s decision, and the Court of Appeal affirmed this ruling. The court emphasized the role of the Medical Treatment Guidelines in determining appropriate medical care for injured workers. It also highlighted the process for obtaining a variance from these guidelines when necessary.

    Things to Know: 

    • Medical Treatment Guidelines: Louisiana has established Medical Treatment Guidelines to ensure efficient and timely medical care for injured workers. These guidelines create a rebuttable presumption as to what treatments are considered necessary.
    • Variances from the Guidelines: If a healthcare provider recommends treatment that deviates from the guidelines, they can seek a variance by demonstrating to the OWC medical director that the variance is reasonably required to treat the worker’s injuries.
    • Burden of Proof: The initial burden of proof lies with the injured worker to show the medical necessity of the requested treatment. If the OWC medical director approves a variance, the burden shifts to the employer/insurer to prove, by clear and convincing evidence, that the decision was not in accordance with the law.
    • Appellate Review: The court’s decision is subject to review by the Court of Appeal, which applies the manifest error standard. The appellate court will only overturn the OWC judge’s decision if there is no reasonable factual basis for it.

    Implications for Injured Workers and Employers

    The Deubler case highlights the importance of understanding and navigating the Medical Treatment Guidelines in Louisiana workers’ compensation cases.

    For injured workers, it’s crucial to work closely with your healthcare provider to ensure your treatment requests are supported by medical evidence and comply with the guidelines or justify a variance. If your requests are denied, you have the right to appeal and present additional evidence to the OWC.

    For employers and insurers, it’s essential to be familiar with the Medical Treatment Guidelines and understand the process for challenging treatment requests. While the guidelines provide a framework for medical care, they are not absolute, and variances can be granted when medically necessary.

    Navigating the complexities of workers’ compensation law can be challenging. If you’re an injured worker or an employer facing a dispute over medical treatment, seeking legal advice from an experienced workers’ compensation attorney is crucial to protect your rights and ensure a fair outcome.

    Additional Resources:IRVIN DEUBLER VERSUS BOGALUSA CITY SCHOOLS & LUBA CASUALTY INSURANCE COMPANY

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Workers Compensation: Permanently Disabled Individual Not Acting Under Scope of Employment In Workers’ Compensation Case and  When a Workplace Injury Crosses State Lines: Navigating the Complexities of Workers’ Compensation and Tort Liability

  • Federal Court Upholds Dismissal of VA Doctor’s Discrimination and Retaliation Claims

    A recent decision by the United States Court of Appeals for the Fifth Circuit highlights the complexities and high standards involved in proving employment discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964. The case, Stroy v. Gibson, involved a Black physician employed by the Department of Veterans Affairs (VA) who alleged racial discrimination and retaliation following a peer review of his patient care.

    Dr. John Stroy, an African-American physician at the VA’s Lafayette Community-Based Outpatient Clinic, faced a peer review after a patient he treated was hospitalized with acute renal failure. The review initially found that “most experienced competent practitioners would have managed the case differently.” Dr. Stroy, believing this review was racially motivated, filed an EEO complaint alleging discrimination.

    Later, Dr. Stroy was accused of leaving a patient unattended. Following an investigation, he received a memorandum outlining expectations for his future behavior. He then attempted to amend his existing EEO complaint to include a retaliation claim, which was denied. He subsequently filed a separate retaliation complaint.

    Before the 180-day waiting period for his retaliation complaint to be processed administratively, Dr. Stroy filed a federal court lawsuit, alleging racial discrimination and retaliation.

    The district court dismissed Dr. Stroy’s retaliation claim for lack of subject matter jurisdiction, as he had filed his lawsuit prematurely before exhausting his administrative remedies. The court also granted summary judgment in favor of the VA on the discrimination claim, finding that Dr. Stroy had not established a prima facie racial discrimination case.

    The Court of Appeals upheld both of these decisions.

    • Retaliation Claim: The court affirmed the dismissal of the retaliation claim, emphasizing the importance of exhausting administrative remedies before filing a lawsuit. While acknowledging that this requirement isn’t jurisdictional, the court stressed its necessity to allow for voluntary compliance before resorting to litigation.
    • Discrimination Claim: The court agreed with the district court that Dr. Stroy failed to establish a prima facie discrimination case. It reasoned that the peer review process did not constitute an “adverse employment action” under Title VII, even with its initial negative finding. Adverse employment actions are typically significant decisions like hiring, firing, demotion, or changes in compensation or benefits. According to the VA’s policy, peer review couldn’t be used for such actions.

    The Stroy v. Gibson case highlights several crucial aspects of employment discrimination and retaliation claims:

    • Exhaustion of Administrative Remedies: The administrative process must be completed before a lawsuit under Title VII can be filed. A premature filing can result in the dismissal of the claim.
    • Adverse Employment Action: To prove discrimination or retaliation, an employee must show they suffered an adverse employment action, typically involving a significant change in their employment status or benefits.
    • High Standard of Proof: Proving discrimination or retaliation requires clear evidence. Courts apply a rigorous standard to ensure that claims are based on solid evidence, not just speculation or subjective feelings.

    Navigating the complexities of employment discrimination and retaliation law can be challenging. If you believe you’ve been a victim of discrimination or retaliation in the workplace, consulting an experienced employment lawyer is essential. They can guide you through the administrative process, assess the strength of your case, and represent you in court if necessary.

    Remember, understanding your rights and taking timely action is crucial in protecting yourself from workplace discrimination and retaliation.

    Additional Sources: JOHN F. STROY, v. SLOAN GIBSON, Interim Secretary on behalf of Department of Veterans Affairs

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Employment Issues: Pregnancy as a Disability and Employment Discrimination: A Case Analysis and Louisiana Employment Discrimination Case Fails Due to Summary Judgment

  • Can a Public Employee be Fired for Off-Duty Gambling?

    The Louisiana Court of Appeal recently reversed a decision of the Civil Service Commission (CSC) that upheld the termination of a public employee for gambling while off-duty. The case involving Carnell Collier, a Quality Assurance and Safety Inspector for the Sewerage and Water Board of New Orleans (S&WB), highlights the complexities of disciplinary actions for off-duty conduct, particularly when the conduct occurs on company property.

    Mr. Collier was fired after being caught gambling at a retirement party held on S&WB property. While the CSC initially upheld his termination, the Court of Appeal disagreed, finding that the punishment was too severe for the offense.

    Key Points of the Ruling:

    • Off-Duty Conduct and Termination: The court acknowledged that even off-duty conduct can be grounds for termination if it impairs public service efficiency. However, it emphasized that the severity of the discipline should be commensurate with the infraction.
    • Factors to Consider: The court considered several factors, including the nature of the offense, the employee’s work record, and past disciplinary history. In Collier’s case, the court noted his long and generally positive service record, the lack of a specific rule against gambling, and that other employees involved in the same incident were not disciplined.
    • Proportionality of Punishment: The court ultimately determined that termination was too harsh a penalty for Collier’s off-duty gambling. It reasoned that while the S&WB had a legitimate interest in promoting ethical conduct, the evidence did not support the conclusion that Collier’s actions significantly impaired the agency’s operations.

    Implications for Public Employees

    This ruling reminds us that even off-duty conduct can have consequences for public employees. However, it also highlights the importance of considering the context and severity of the misconduct when determining appropriate disciplinary action. Termination should generally be reserved for the most serious offenses or when an employee’s conduct severely undermines the public’s trust or the agency’s efficiency.

    Employer Takeaways:

    • Clear Policies: Employers should have clear policies regarding employee conduct, both on and off duty, and communicate these policies effectively to all employees.
    • Proportionate Discipline: When considering disciplinary action, employers should carefully weigh the severity of the offense, the employee’s work history, and any mitigating factors. Termination should be a last resort, reserved for the most severe infractions.
    • Consistency is Key: To avoid claims of arbitrariness, employers should strive for consistency in their disciplinary practices.

    The Collier decision emphasizes the importance of proportionality in disciplinary actions and the need to consider all relevant factors before terminating an employee. If you’re an employee facing disciplinary action or an employer navigating the complexities of employee discipline, seeking legal advice is crucial. An experienced employment lawyer can help you understand your rights and obligations and ensure that any disciplinary action is fair and justified.

    If you have questions about employment law or disciplinary actions in Louisiana, don’t hesitate to contact a reputable law firm specializing in employment law. They can provide the guidance and support you need to navigate these complex issues and protect your rights. Remember, understanding the law and seeking timely legal advice can make all the difference in achieving a fair and just outcome.

    Additional Sources: CARNELL COLLIER VERSUS SEWERAGE & WATER BOARD

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Employment Issues: Permanently Disabled Individual Not Acting Under Scope of Employment In Workers’ Compensation Case and Pregnancy as a Disability and Employment Discrimination: A Case Analysis

  • Employee Termination Upheld for Unauthorized Vehicle Use and Dishonesty

    Leotis Johnson, an employee of the Sewerage and Water Board of New Orleans (S&WB), was assigned a company vehicle equipped with a GPS. S&WB policy prohibited personal use of company vehicles without supervisor authorization. Johnson was accused of using the vehicle for personal errands during work hours and lying about his whereabouts when questioned.

    The Sewerage and Water Board of New Orleans dismissed Johnson due to unauthorized use of a company vehicle and non-compliance with established policies and procedures. Johnson challenged this decision and the Civil Service Commission’s supporting findings.

    The Court of Appeal Fourth Circuit upheld Johnson’s termination, stating that his actions constituted “cause” for termination as they were detrimental to the efficient operation of the S&WB. The court found that Johnson’s unauthorized use of the company vehicle for personal purposes during work hours was a clear violation of company policy. Additionally, his dishonesty in initially denying the allegations and providing false explanations further supported the termination.

    Key Takeaways

    1. Importance of Company Policies: Employers have the right to establish policies and procedures for using company property, including vehicles. Employees must adhere to these policies to avoid disciplinary action, including termination.

    2. Honesty is Crucial: When confronted with misconduct allegations, employees must be truthful. Dishonesty can be grounds for termination, especially when it obstructs an investigation or demonstrates a lack of trustworthiness.

    3. Burden of Proof: In cases of employee termination, the employer has the burden of proof to demonstrate that the employee’s actions were detrimental to the organization and justified the disciplinary action taken.

    4. Employee Rights: While employers have the right to discipline employees for cause, employees also have the right to appeal their termination through the Civil Service Commission. However, the Commission’s decision is given great deference and will only be overturned if it is arbitrary or capricious.

    This case reminds employees of the importance of adhering to company policies and being honest in the workplace. For employers, it highlights the need for clear policies and procedures and the importance of conducting thorough investigations when allegations of misconduct arise.

    Navigating the complexities of employment law and challenging a termination can be daunting. If you are in a similar situation where you believe your termination was unjust or the Civil Service Commission’s findings were erroneous, seeking legal advice is crucial. A knowledgeable employment lawyer can help you understand your rights, assess the strength of your case, and guide you through the appeals process. Don’t hesitate to contact a reputable law firm specializing in employment law to ensure your rights are protected and you receive the justice you deserve. Understanding your rights and taking timely action is essential to navigating employment disputes.

    Additional Sources: LEOTIS JOHNSON VERSUS SEWERAGE & WATER BOARD

    Written by Berniard Law Firm 

    Additional Berniard Law Firm Articles on Employment Issues: When one employee attacks a supervisor, can a supervisor proceed with a lawsuit against the employer?  and When Can an Employer be Held Responsible for Employee’s Wrongdoing?

  • When a Slip and Fall Isn’t Just an Accident: Understanding Merchant Liability

    We’ve all heard the phrase “slip and fall,” often in a comedic context. However, slip-and-fall accidents can result in severe injuries and legal battles. The recent case of Foto v. Rouse’s Enterprises, LLC, highlights the complexities of such cases and what it takes to prove a merchant’s liability.

    In 2013, Daisy Foto was shopping at a Rouse’s store in Louisiana. She slipped on a clear liquid on the floor, fell, and sustained injuries. Foto sued Rouse’s, claiming they were responsible for her injuries because they either created the hazardous condition, knew about it, or should have known about it.

    Rouse’s argued they had no liability because Foto couldn’t prove they created the spill, knew about it beforehand, or that it had been there long enough for them to reasonably discover and clean it up. They presented evidence of a store inspection conducted earlier that morning, showing no hazards were noted.

    Foto countered, arguing that the inspection was inadequate and that the spill had likely been there for some time, given that she had been in the aisle for about ten minutes and didn’t see anyone else. She argued this was enough to establish that Rouse’s had “constructive notice” of the hazard—meaning they should have known about it.

    The trial court initially sided with Rouse’s, granting them summary judgment and dismissing Foto’s case. However, an appeals court reversed that decision. The appeals court determined that Foto had presented enough evidence to create a genuine question about how long the spill had been on the floor. The specific evidence the appeals court pointed to was the following;

    1. The liquid was present on Aisle 12 before Foto fell.
    2. Foto was on the aisle for about 10 minutes before falling, and no one else was there.
    3. The liquid wasn’t near similar products, suggesting it didn’t spill recently.

    Because Foto presented that evidence in her opposition to Rouses’ motion, the appeals court felt a jury should decide whether Rouse had constructive notice of the hazard and was liable for Foto’s injuries.

    In slip and fall cases, the burden is on the injured party to prove the merchant was negligent. This usually means showing the merchant created the hazard, knew about it, or should have known about it. Even if a merchant didn’t directly create a hazard or know about it, they can still be liable if it existed for a long enough time that they should have discovered and addressed it. The outcome of these cases often hinges on evidence about how long the hazard existed, any witnesses, and the store’s policies and procedures for inspections and maintenance.

    Slip and fall cases can be complex. If you’ve been injured in a slip and fall accident, it’s essential to consult with an experienced personal injury attorney to understand your rights and options.

    Additional Sources: Foto v. Rouse’s Enterprises, LLC

    Written by Berniard Law Firm

    Additional Berniard Law Firm Articles on Injury Premise Liablity: Construction Worker’s Electrocuted Injury Leads to Dispute Among Defendants Over Liability

  • Court of Appeal Increases Monetary Damages Award Following Workplace Injury in Monroe Beverage Facility

    Injuries that occur while an individual is working can devastate the injured party’s life in several ways. Not only does the injured party likely earn less money due to the injury, but other damages, such as medical expenses and loss of enjoyment of life, may also result.

    James Thomas was a forklift operator for Marsala Beverage Company (“Marsala”) in Monroe, Louisiana. In addition to operating forklifts, Thomas routinely moved cases of drinks by hand and performed janitorial duties around the facility. On one occasion, when Thomas was operating a forklift to unload pallets of drinks, the forklift fell out of the back of a delivery truck, landing several feet below onto concrete.

    After the fall, Thomas visited Marsala’s company doctor, Dr. George Woods, complaining of pain in his back. Dr. Woods examined Thomas and ordered x-rays, which showed no evidence of fractures in Thomas’s spine. During the visit, Thomas explained to Dr. Woods that he wanted to return to work as soon as possible to receive bonus compensation based on the number of hours he worked that week. Dr. Woods cleared Thomas to return to work, which he did even though he continued to experience back pain.

    After several months, Thomas stopped working and filed a lawsuit against Louisiana United Businesses Association Casualty Insurance Company (“LUBA”). Marsala’s insurance carrier. In the petition, Thomas sought damages for physical and mental suffering, medical expenses, inability to earn past and future wages, disability, and loss of consortium.

    At trial, the jury awarded Thomas $40,000 for general damages, $34,977 for inability to obtain past wages, and $40,000 for previous medical expenses. It also awarded Thomas’s wife $10,000 for loss of consortium. Subsequently, the trial judge decreased Thomas’s total award to approximately $50,000 based on Thomas’s failure to mitigate damages.

    Thomas appealed to Louisiana’s Second Circuit Court of Appeal. The first issue on appeal was whether the $40,000 award for general damages was, as Thomas argued, abusively low. The purpose of general damages is to compensate an injured party for pain and suffering that cannot be precisely calculated. Duncan v. Kansas City Southern Railway Company, 773 So.2d 670 (La. 2000). There is no definitive way to calculate general damages, Terry v. Simmons 215 So.3d 410 (La. Ct. App. 2017), but a jury should consider the severity and duration of pain and suffering that the injury caused. LeBlanc v. Stevenson, 770 So.2d 766 (La. 2000). The Court of Appeal affirmed the jury’s award of $40,000 in general damages based on the fact that the jury based the amount on evidence that the duration and the severity of Thomas’s injury were low.

    Additionally, much of the evidence revealed discrepancies in Thomas’s accident description. These discrepancies likely reduced Thomas’s credibility with the jury. The Court specifically noted that Thomas’s Facebook posts following the injury were inconsistent with the level of activity that he reported to doctors and that Thomas described the details of the accident differently to six different doctors he visited throughout treatment

    The second issue for the Court of Appeal was whether the jury’s decision to not award Thomas damages for future medical expenses was reasonable. Under Louisiana jurisprudence, a party must provide evidence of the need for future medical expenses through testimony from a medical expert. Terry v. Simmons 215 So.3d 410 (La. Ct. App. 2017). An appellate court must only determine if the jury’s award was reasonable. Menard v. Lafayette Ins. Co. 31 So.3d 996 (La. 2010).

    Here, the Court of Appeal noted that there was no objective medical evidence to show that Thomas continued to suffer pain from the accident. Additionally, several physicians opined that Thomas’s back pain was not caused by the injury but rather by aging. In light of this evidence and Thomas’s failure to show that he would incur expenses for medically necessary future treatment, the Court of Appeal held that the jury’s decision not to award damages for future medical expenses was reasonable.

    The third issue before the Court of Appeal was whether the jury’s award of $34,977 for lost wages was reasonable. A party looking to recover previously lost wages must prove the dollar amount lost and the duration of work missed due to the injury. Boyette v. USAA, 783 So.2d 1276 (La. 2001). The Court of Appeal noted that the jury miscalculated its award for lost wages because it based its figure on 12 months of missed work; Thomas, in fact, could not work for 16 months. Accordingly, given Thomas’s wages of $2,872.33 per month, the jury should have multiplied this figure by 16 months, resulting in a total award for lost wages of $45,957. 

    Next, the Court of Appeal examined the jury’s decision not to award Thomas damages for loss of future earnings. In Louisiana, the loss of future earnings is determined by the decrease in the injured party’s ability to work based on his experience level, type of work, and training. Young v. Marsh, 153 So.3d 1245 (La. Ct. App. 2014). The Court of Appeal affirmed the jury’s decision not to award damages for loss of future earnings based on the fact that Thomas was able to return to performing janitorial duties after the injury as well as Thomas’s failure to provide evidence of the amount of earnings he would expect to lose if he found only a light duty job.  

    The fifth issue for the Court of Appeal was whether Thomas failed to mitigate his damages. In Louisiana, an injured party must reduce damages using reasonable discretion, good faith, and fair dealing. Young v. Marsh (supra). The injured party must comply with whatever treatment is recommended by a healthcare professional reasonably expected to heal the injury. Flemings v. State, 19 So.3d 1220 (La. Ct. App. 2009). An injured party who unreasonably delays medical treatment, where that delay aggravates the injury, is considered to have failed to mitigate damages.

    The trial record indicated that Thomas did not complete all the physical therapy that was recommended and that he did not take all the medication that was prescribed by his doctors. However, the Court of Appeal determined that these failures were the fault of LUBA, not Thomas himself. Since the evidence showed that Thomas reasonably attempted to comply with the recommended medical treatment, the Court of Appeal held that Thomas adequately mitigated damages.

    The sixth issue before the Court of Appeal concerned the jury’s award of $10,000 to Mrs. Thomas for loss of consortium, which Thomas argued was abusively low. A spouse may recover monetary damages for loss of consortium when an injury to a spouse results in loss of companionship, impairment to sexual relations, decreased ability to perform material services, decreased financial support, loss of aid and assistance, and loss of fidelity. La. C.C. art. 2315(B).

    Noting that Thomas was able to help around the house after the injury by performing light duties and that Thomas suffered from high blood pressure and erectile dysfunction for several years before the injury, the Court concluded that the injury did not result in a substantial decrease in the quality of the Thomas’ marriage. Therefore, the $10,000 award for loss of consortium was reasonable and not abusively low. 

    The seventh and final issue for the Court of Appeal concerned the trial court’s prohibition against introducing evidence about the worker’s compensation benefits that Thomas had already received before the trial. The Court determined that since the ban on introducing previously received worker’s compensation benefits is absolute under Louisiana law, the trial court did not err in excluding that evidence from the trial. See La. C.E. art. 414.

    This case demonstrates the importance of retaining an experienced attorney in a workplace injury case. To cite one example, had the attorney representing Thomas failed to notice that the jury incorrectly calculated Thomas’s lost wages award and enumerated that error on appeal, Thomas’s overall recovery would have been reduced by almost $11,000.  

    Additional Sources: THOMAS v.  BOYD ET AL.

    Written by Berniard Law Firm

    Additional Berniard Law Firm Articles on Workers Compensation: Injured Worker Denied Appeal in the City of New Orleans

     

  • Injured Shreveport Worker’s Claim Saved from Dismissal on Summary Judgment in Case Involving an Allegedly Open and Obvious Hazard

    David Cox delivered four pallets of shirk-wrapped material for his employer, Southwestern Motor Transport, in June 2012. The delivery location was the Baker Distributing Company warehouse in Shreveport, Louisiana. Baker’s delivery dock did not have a dock plate. A dock plate is a metal bridge connecting a truck’s back to the loading dock. There is an empty space between the back of the truck and the loading dock without a dock plate. In addition, Cox found that the loading dock was cluttered with several objects. Due to this clutter, Cox could not use a forklift to unload the truck.

    Working alone, Cox managed to get two pallets off the truck with a pallet jack but then used a dolly for the last two pallets. While attempting to get the previous pallet off the truck, Cox’s foot became wedged between the dock and the truck, causing him to fall on his back. Cox filed a lawsuit as a result of being injured.

    In the lawsuit Cox alleged that this fall caused him to have permanent injuries that made him disabled. The injury resulted in Cox receiving worker’s compensation benefits. Cox filed a lawsuit against Baker, arguing that the lack of a working dock plate made the dock unreasonably dangerous, that the lack of a dock plate was not easily visible to parties making deliveries to the warehouse, and that Baker had a duty to provide a safe entrance for parties unloading at the dock.

    Baker filed a motion for summary judgment, arguing that Cox was aware of the lack of a dock plate; this made the hazard open and evident to Cox, thereby insulating Baker from liability for his injuries. The trial court, concluding that the lack of a dock plate was open and obvious to individuals using the loading dock, granted Baker’s motion. 

    A hazard is considered open and obvious when the danger is clear to all who may encounter the hazard. Generally, a defendant is not obligated to protect against an open and obvious risk. Hutchinson v. Knights of Columbus, 866 So.2d 235 (La. 2004). On appeal by Cox, the Second Circuit Court of Appeal for Louisiana acknowledged that the lack of a dock plate was evident to anyone attempting to unload items on the warehouse dock. However, in its view, the overall condition of the dock should also have been assessed when the trial court considered Baker’s motion for summary judgment.

    The Court of Appeal specifically mentioned that other relevant factors — such as the gap between the truck and the dock, the cluttered loading dock area, the inability of a forklift to maneuver the area, and the lack of assistance available to Cox — could have influenced one’s perception of the hazard. Because the trial court did not consider these additional factors, the Court of Appeal held that the decision to grant Baker’s summary judgment motion was improper. Therefore, the Court of Appeal reversed the trial court and remanded the case for reconsideration. 

    Louisiana law insulates premises owners from liability for injuries resulting from open and obvious hazards, showing that the owner of a building is not responsible for every misfortune that a visitor may encounter. Anyone who has suffered an injury on someone else’s property should seek an attorney experienced in premises liability to determine if the facts of the situation establish responsibility on the property owner’s part.

    Additional Sources:  COX v. BAKER DIST. CO., L.L.C.

    Written by Berniard Law Firm  

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